Friday, March 31, 2017

by Michael Dorf
During the debate over the ill-fated "American Health Care Act," Freedom Caucusers and other critics from the right who thought that the measure did not go far enough toward completely repealing the Affordable Care Act frequently used the same talking point. Health care, they asserted, is not a "right." Many of these statements were uttered without any concrete semantic intentions; the utterers were simply dog-whistling their anti-government base while misleading the broader public, much in the way that Republicans previously learned from the likes of Frank Luntz to call the estate tax the "death tax" and to decry the Affordable Care Act as a "government takeover" of health care. Indeed, as I shall explain, if anything, the new rhetoric is even more misleading than the Luntzian malphemisms.

Thursday, March 30, 2017

The world finally caught on to Paul Ryan's game last week. The Speaker of the House might not survive his inability to find enough Republicans to vote for his deeply unpopular and poorly crafted American Health Care Act -- a gratuitously cruel bill that Donald Trump, for no apparent reason, had embraced so completely that Ryan's bill became Trump's bill (TrumpRyanCare, as I called it) and Ryan's failure became Trump's failure.

One of Trump's strongest supporters on Fox News (which is filled with people vying to be Trump's strongest supporter) immediately called for Ryan to go. The editors of The New York Times paired their scathing criticism of Ryan with a brilliant caricature showing Ryan as a tiny head on top of an oversized suit. I have been calling Ryan an empty suit for years, so that one was especially fun to see.

I am not predicting that Ryan will actually be taken down by this latest display of his emptiness. I have no greater predictive powers about such matters than anyone else, and if I possessed such powers, I would be inclined to use them for better purposes. Instead, I want to explain why Ryan should want to treat this situation not as a threat but as an opportunity to leave Congress.

Wednesday, March 29, 2017

In my column for this week, I discuss the case of Peña-Rodriguez v. Colorado, which held that an evidence rule prohibiting jurors from testifying about their deliberations in a hearing to invalidate a verdict (a "no impeachment rule") had to give way to the Sixth Amendment right to an impartial jury in a case in which the jurors would have testified that one of the other jurors endorsed racial stereotypes and indicated, among other things, his view that the criminal defendant was guilty of sexual misconduct because he was Mexican. In both the majority and dissenting opinions, the Supreme Court exhibits respect for the no-impeachment rule (a version of which exists in every jurisdiction in the United States), a rule which is intended to protect jurors from post-verdict harassment and enable jurors to speak their minds during deliberations without worrying that their statements might later become public.

Tuesday, March 28, 2017

Even in a world where Republicans have shamelessly abandoned their supposed principles in order to embrace Donald Trump, the one thing about which they all still agree is that they must cut taxes on the rich. On this point, Trump happily concurs. Indeed, Trump's regressive economic views easily put him into what now counts as the Republican mainstream.

Now that they are looking for a place to start all the winning that Trump promised his non-majority of voters, the latest rumors are that congressional Republicans will take a run at the tax code. Other commentators have noted that this is hardly an easy lift, especially because the details of a tax overhaul will quickly destroy whatever unity remains on the right.

That is surely correct, but my question here is a different one. Suppose that the Republicans in Congress -- both their leaders and their most extreme members -- actually manage to get their collective act together and agree on the details of a huge gift to their wealthy patrons in the form of a tax "reform" bill. Suppose also that Democrats in the Senate refuse to go along. Are Republicans so committed to reverse Robin Hood policies that they will finally abandon all pretense of preserving Senate rules?

In other words, will Republicans "go nuclear" on tax cuts for the rich in the same way that they might change the rules to confirm Supreme Court nominee Neil Gorsuch?

Monday, March 27, 2017

There was a time when a handful of legal scholars advocated for an originalist methodology that, if applied honestly, would significantly constrain judicial discretion even in hard constitutional cases. Professors Raul Berger and Lina Graglia, among others, argued that 1) the original meaning of the Constitution does not change; 2) that judges are bound by that meaning; and, most crucially, 3) judges should not invalidate decisions by other political actors unless those decisions are clearly and obviously inconsistent with that original meaning. If the original meaning of the text and history in question were subject to reasonable disagreement, then judges had to defer to other governmental officials.

by Michael Dorf
Last week, I joined the chorus of academics decrying the futility of most of the questioning of Judge Gorsuch and other recent SCOTUS nominees. In a column, I agreed with Joe Biden's characterization of confirmation hearings as a "kabuki dance," even as I suggested that the hearings have some incidental educational value for the public. Then, in a blog post, I argued that Judge Gorsuch had introduced a new way for nominees to evade senators' questions: By characterizing just about every question as seeking his "personal"--and thus ostensibly irrelevant--opinion.

Judge Gorsuch also relied on the tried and true method of declining to answer questions about past cases on the ground that doing so would require him to pre-judge issues that could come or return to the Supreme Court, and thus compromise his impartiality. As numerous commentators have previously observed, this particular piece of conventional wisdom is highly dubious. If commenting, even tentatively, on whether he thought, say, Citizens United v. FECor Obergefell v. Hodges, were rightly decided as an original matter would compromise Judge Gorsuch's impartiality in a future case seeking to construe their scope or overrule them, then, a fortiori, Justice Kennedy's impartiality is compromised in such future cases because he authored the majority opinions in both Citizens United and Obergefell. Yet no serious person thinks that Justice Kennedy (or the other justices who ruled on those cases) should be recused from any such future cases.
Accordingly, principles of judicial ethics do not justify the I-can't-comment-on-specifics-because-the-issue-might-come-before-the-Court excuse. In the balance of this essay, I want to suggest that there might be a somewhat better justification for that excuse: separation of powers.

Friday, March 24, 2017

The personal relationship that I have with my automobile insurance company is a cornerstone of my happiness. Also, my sense of empowerment when I interact with my cable company makes me feel pleased that no one is coming between us. I view it as essential to my life that those deep connections never be disturbed.

No, I have not lost my mind. Instead, I am simply trying to force myself to think in the way that Republicans want me to think about the inherently unbalanced relationships that people with relatively little power have with the powerful. Republicans ultimately rely on that deliberately naive view of "relationships" between individuals and powerful institutions to justify their anti-government crusades.

Thursday, March 23, 2017

My latest Verdict column went live yesterday morning, after a very full day of questioning of Judge Gorsuch by members of the Senate Judiciary Committee. The column makes a number of points about the way in which the Gorsuch confirmation hearing resembles other recent confirmation hearings--which I'll quickly summarize before turning to one way in which Gorsuch's answers strike me as novel.

Wednesday, March 22, 2017

In 2005, shortly before he was appointed
to the federal bench, Supreme Court nominee Neil Gorsuch wrote a commentary for the National Reviewcriticizing liberals’ reliance on litigation to accomplish social reform. This
was not a surprising position for one of Federalist Society’s rising stars to take. Conservatives have long frowned upon public interest lawsuits
as a means of pursuing social change.

Tuesday, March 21, 2017

Has Donald Trump figured out how to beat the press? There is understandable concern that his Twitter addiction has superseded the normal channels of political communication, and that he has in general put himself outside the rules of the old game. If so, we have an even more serious problem than we thought.

Monday, March 20, 2017

When Donald Trump
nominated Judge Neil Gorsuch to the Supreme Court, he praised him as someone who will interpret the
Constitution “as written.” Commentators from both sides of the aisle have
described him as an “originalist” who will, in Gorsuch’s own words, rely on “text, structure, and history” to
interpret the Constitution rather than his “own moral convictions.”

Sunday, March 19, 2017

by Diane KleinYou don't have to know much about basketball to have heard of the Los Angeles Lakers, or to remember "Showtime," when the team won five NBA titles in the 1980s and Magic Johnson became a star. And you don't have to know much about estate planning to know why team owner Jerry Buss's succession plan was unlikely to succeed. All estate-planners know the grim statistics on family business succession. Only around 30% of family businesses survive the death of their founder; just 16% make it to the third generation; and by the fourth generation (the founder’s great-grandchildren), just 3% are still in business and under family control. This is actually a problem worldwide; family businesses in countries as different as Norway and Nigeria experience something similar.

Friday, March 17, 2017

Although the lawsuits challenging President Trump's first and second Muslim bans have offered a variety of legal claims, the one that has gotten the most leverage thus far appears to be the Establishment Clause challenge. Federal district courts in Hawai'i and Maryland both relied on the Establishment Clause as the basis for their invalidation of Ban 2.0 in the last few days. So did the federal district court in Virginia in enjoining Ban 1.0 in February. Why the Establishment Clause rather than the other claims?

Recently, The New York Times published a guest op-ed written by Ohio Governor John Kasich. Kasich, a Republican, insists that he wants everyone to be moderate and bipartisan, especially regarding health care.

Some readers, especially those who have not yet hit their fortieth birthdays, might only know Kasich as the failed presidential candidate who managed to be among the last three men standing in last year's Republican primaries. Other readers might simply have forgotten most of the key details of Kasich's long political career.

With that in mind, I am happy to provide here a translation of some of the key selections from Kasich's op-ed. Think of it as Kasich under the influence of truth serum.

[Text]John Kasich: End the Partisan Warfare on Health CareBy John Kasich, March 10, 2017

[Translation]
Hi, I'm John Kasich. I was a member of Congress from Ohio for eighteen years, during which time my party made a lot of noise about how members of Congress should be term-limited to much less than eighteen years. I became one of Speaker Newt Gingrich's top lieutenants in his successful efforts to end inter-party cooperation in the 1990's. I voted to impeach President Bill Clinton.

Now, I am presenting myself as a moderate, and to my amazement, it seems to be working. Even the editorial board of The New York Timesall but endorsed me in the Republican presidential primaries last year, notwithstanding my extreme views on abortion, immigration, mitigating climate change, and nearly every other issue that matters. Next to Ted Cruz, I looked less scary. Lucky me!

[Text]

Americans are relying on leaders in Washington to fix health care, not
engage in yet another unproductive partisan standoff. In 2010, one side
of the political aisle in Congress, the Democrats, chose to “fix” health
care unilaterally, without bipartisan support. The result was
Obamacare, which has run up government spending while failing to drive
down the cost of health care.

Now,
with the political tables turned in Washington, the Republicans are
starting down the same unilateral path, a course that can only further
divide the nation. A true and lasting reform of the health insurance
system must be accomplished by bringing the two sides together, not by
replacing one divisive wedge with another.

[Translation]
I certainly know a lot about divisive wedges, and one of the best moves that people like me have developed over the years is to raise the level of vitriol and then complain that the conversation has become so unpleasant. As but one small example, even as I posture about being nonpartisan, I make sure that I use the non-word "Obamacare" instead of Affordable Care Act.

Here, I am repeating the well worn lie that the 2010 negotiations over the health care bill were one-sided and that the Democrats refused to reach out to Republicans. This is, as another op-ed for this newspaper put it, "The Original Lie About Obamacare." The truth is that my Republican cohorts were told to oppose anything that Obama proposed, for purely political advantage. Mitch McConnell, then the Senate Minority Leader, told his party's members to deny Obama any votes so that the president could not claim that the bill was bipartisan.

Having dishonestly characterized what the Democrats did in 2010, I now try to sound high-minded by saying that the Republicans should be bipartisan to show that they are better than Democrats. But why should Republicans, who have the numbers to pass whatever they want, care about bipartisanship? Because we will want to pass the buck when this thing goes bad, of course. But I cannot say that out loud, so I will wrap myself in the warm glow of reasonable bilateralism.

The fact is that "true and lasting reform of the health insurance system" could be accomplished by one party. If the Republicans really have a plan that would make people better off, they can pass it without Democratic votes and then let the people defend the law against future assaults. But wait, that is what is actually happening with the ACA.

That law has not turned out to be perfect, but it has made people's lives much better, and a majority of the country now supports the law. For that matter, there is a lot of support for a "Medicare for All" single-payer system, but I am not going to say that such a popular and less expensive plan should be adopted, because I am committed against all evidence to the idea that the ACA is a failure and that "market reforms" are the answer to every problem. It is too inconvenient to note that the ACA is what a market-based health care system has to look like.

[Text]"Throughout my career, I’ve learned that meaningful change happens only
with bipartisan support. When I was chairman of the House Budget
Committee in the 1990s, we were able to make over Pentagon spending,
revamp welfare and balance the federal budget for the first time in
decades because Democrats and Republicans made a commitment to work
together. We disagreed and debated, but in the end we agreed to changes
that strengthened our country."

[Translation]
I was the chairman of the House Budget Committee when Bill Clinton decided to triangulate on issues like welfare and the budget. The federal budget was briefly balanced late in his term (as we were impeaching him), but that was to a significant degree caused by a surge of tax revenues during the dot-com bubble.

We got Clinton to agree to "revamp welfare" such that the harms of the bill would not be obvious until we experienced an economic downturn. And when the Great Recession came, boy oh boy, did people suffer. My party's response? Cut off unemployment benefits even as the unemployment rate stayed elevated for years.

But the most important thing to remember about the 1990's is that Gingrich and I were the original post-truth hucksters. Before he became a U.S. Senator, Al Franken and I got into an argument after a political event. Newt had given his usual speech in which he bashed the press and Democrats for failing to understand that our Medicare plan would increase benefits from $4800 to $6700 over the space of several years. Dumb liberals!

Franken, however, tried to get me to admit that these numbers were not adjusted for inflation. He later recounted in one of his books that he succeeded in getting me to admit that we were being intellectually dishonest. (The incident is described here.) Not that I gave up easily, because it was really important to pretend -- even to Franken and a couple of journalists after hours -- that we were not lying. But it did not really matter, because we just kept on lying about this even after Al got me to fess up.

So yes, Republicans and Democrats "disagreed and debated" in the 1990's, and I was one of the people who was polluting the debate with dishonest nonsense. But now I am holding up those halcyon days of bipartisanship as an example for all to behold: Let us, as we did in the 1990's, agree across the aisle to figure out more ways to harm the most vulnerable people in the United States.

[Text]

"A
responsible, and necessary, repeal and replacement of Obamacare must
balance cost and coverage. ... I
have always opposed Obamacare and consistently called for it to be
replaced with more conservative, market-driven reforms that actually
control health care costs. ... But if both sides work together, we can fix Obamacare in a way that
preserves coverage, stabilizes the market, reforms Medicaid and controls
costs."

[Translation]

So which is it? Am I in favor of repealing the ACA or "working together" to fix it? I say that repeal is "responsible, and necessary," but I want to have it both ways, because I want to remain politically viable among Republicans (I'm term-limited in Ohio), but I also want to sound reasonable, too. So I will say (as I have been saying for years) that we should get rid of the ACA entirely, but I will then say that we should adopt something that does what the ACA does. If I sound like Donald Trump, please don't tell anyone.

Should I admit that I am unaware that health care inflation has moderated significantly for years, and that the ACA has not changed that? Should I say out loud that the system has worked better even than its advocates had hoped, given the opposition to it in most Republican states? No, I will say that the system's current problems are proof that we must throw out the system and adopt something new.

[Text]"Republican legislation now moving swiftly through the House takes
steps in that direction. But the legislation also phases out the
expanded Medicaid coverage that is in place in Ohio and 30 other states.
Not having a viable alternative is counterproductive and unnecessarily
puts at risk our ability to treat the drug-addicted, mentally ill and
working poor who now have access to a dependable source of care. ...

"Today we’re providing better coordinated care, Ohio’s Medicaid program
is financially stable and per-member spending has been flat for over six
years. We’ve been able to extend health care coverage to about 1
million Ohioans, more than 700,000 of them low-income adults.."

[Translation]
This is me in my "Aren't I a nice guy?!" mode. I was one of the only Republican governors who did not reject the Medicaid expansion for my state, which made me look good in what is still a battleground state. Now, I am taking credit for the increase in coverage of poor people in Ohio even as I support repeal of the law that caused the improvement, and even as I tell Democrats that they must agree to negotiate with people who are absolutely committed to cutting Medicaid.

[Text]"In my state, we believe that a job is the best anti-poverty program, so
we are working to help neighbors who need a hand move up the economic
ladder and get the skills and training they need. As we seek to do this,
however, we can’t pull the ladder out from under them by taking away
their health care."[Translation]
I have now run out of anything even plausibly interesting to say, so I am filling space by saying things that no person could possibly disagree with. Yeah, take that, all you people in not-Ohio states who don't think that a job is the best anti-poverty program! As politicians do, I am now speaking in vague terms about the how we are "working" to make things better, not mentioning how much Republicans hate spending on all things, job training included.

I don't know, maybe I really do think it's a bad idea to take away people's health care when they are struggling. Unlike the people who think that the poor deserve their lot in life, I am at least willing to think that they are victims of circumstance. Yet I am not really willing to point out that only one side of the political aisle in Washington actually favors policies that would help them, or that the other side of the aisle will never agree to what I am saying here.

And now, I am going to go back to thinking about how to start a constitutional convention to pass a Balanced Budget Amendment, an idea so absurd that even conservative demigod Antonin Scalia ridiculed it. I guess I'm just confused, but at least everyone knows that I would have been a huge improvement over the guy who beat me in every primary and caucus in 2016. Except one. Way to go Ohio!

Thursday, March 16, 2017

by Michael Dorf
Today marks the launch of the Take Care blog, a new venture that will produce and collect critical commentary focusing on the Trump administration. The name "Take Care" comes from the Constitution's placement of an obligation on the president to "take Care that the Laws be faithfully executed." The commentary on Take Care will evaluate how well or poorly President Trump is complying with that obligation.

I don't usually use this space simply to promote other work, but I'm making an exception for two reasons: First, I am one of the contributors to Take Care, although my contributions will mostly consist of cross-posting material that appears here on DoL, on Verdict, and on Newsweek. But since DoL readers already have easy access to my musings, the second and better reason I'm making this promotional announcement is the importance of the project. Take Care will feature commentary by an extremely strong pool of law professors and lawyers. Indeed, it already does. I urge readers to check it out.

Although Donald Trump's presidency is beginning to show recurring patterns -- which is not to say that he is becoming normal, but merely that some of the abnormality is now feeling drearily familiar -- we still know surprisingly little about what he really wants from being president.

Many of us have assumed all along that this is the ultimate ego trip for the world's most insecure narcissist. There is still plenty of evidence to support that theory, of course, but lately I have begun to wonder if Trump is starting to show that he has an agenda that he truly cares about.

Or perhaps he is even more incompetent than he seemed to be all along. He is supporting a regressive agenda, to be sure, but the surprise is that he is spending political capital on things that have so little upside for him politically or personally. For a man who is all about being seen as a winner, he is picking some very foolish fights.

The most obvious current example is Trump's embrace of the Republicans' shockingly cruel and ill-conceived attempt to replace the Affordable Care Act (ACA). Even before the Congressional Budget Office's released its analysis showing how many people would be harmed by the Republicans' bill, it was obvious that this was going to be a political mess.

During the campaign, of course, Trump had gleefully joined with all other Republicans in savaging the ACA. He knows an applause line and how to raise the volume, but it never seemed that the issue was important to Trump other than as a way to call Barack Obama the Worst President Ever. Trump is the perfect vehicle to level nonspecific and opportunistic complaints about the imperfections in the ACA.

As Republicans in Congress are learning, however, it is much more difficult to devise and defend specific legislation than to throw rocks through windows. Trump's entire political persona is about throwing rocks through windows, of course, so it is unsurprising that he piled on when it was fun. But why stick with it now?

Trump, after months of being notably distant from the health care debate, has suddenly decided that he is a huge fan of the Republicans' bill, and he is urging his supporters to get behind it. Even if Trump honestly was the last person on earth to discover that "health care could be so complicated," he knows now. Yet he is throwing his weight behind his party's unpopular leaders' new, terrible bill.

What makes this surprising, and the reason I am calling this an unforced error, is that Trump could easily have continued to stay on the sidelines. Even Barack Obama, after all, stayed largely out of the legislative process when the ACA was being formulated. Although he eventually embraced the bill as his own, his supporters were frequently frustrated during the process by his unwillingness to get involved in the fight. For example, the so-called Public Option went down essentially with little more than a whimper.

Trump could, in fact, have used his previous over-the-top hype about the ACA replacement as an excuse to step aside. He could have simply said that he promised to support a bill that provided better coverage to everyone at a lower price. "When Congress sends me that bill, I'll sign it." He could even have tried to blame Democrats for somehow being the reason that the Republicans' magical bill never came into existence.

This unforced error raises a number of possibilities, as noted above. He might be revealing that he cares about something other than his own self-importance. Maybe he has concluded that, as a policy matter, the Republicans' bill is a fine piece of work. We certainly have plenty of reason to believe that he does not care at all about the people who would be harmed by the bill, and he likes tax cuts for rich people.

But again, why put his own credibility on the line with a bill that is obviously a train wreck? He will either be tarred by its ugly demise, or perhaps worse for Trump politically, he will be left to defend a terrible bill that somehow emerges from the food fight among Republicans and carries his name. This suggests incompetence, not evidence of sincere belief in a proposed policy change.

Similarly, what is Trump thinking with his renewed enthusiasm for actually building the ridiculous "big beautiful wall" on the Mexican border? He is requesting serious money in his new budget to begin building the wall. What madness is this?

To be clear, I am not expecting Trump to admit that the idea of keeping out nonwhite people from the United States is an immoral position to hold. I am simply saying -- as many, many people have said over the last few months -- that there are plenty of easy ways for Trump to finesse this situation in a way that spares him political damage.

Trump might well worry that this, unlike health care, is an issue that is already truly his own. His campaign was organized around The Wall, and he could be forgiven for imagining that his credibility with his supporters is on the line. If that is what he is thinking, however, then his critics have actually been too generous in their assessment of him as a political fool.

Even during the campaign, various Trump supporters were preparing the way for Trump to declare victory without actually building his wall. He could have said that, now that he is president, he has seen that he can achieve his objectives by getting the Border Patrol to be more aggressive. (Blame Obama for being too shy about law enforcement.)

Famously, Trump's supporters have said that they do not take his statements as literal truth. Now that Trump and his people have said that the term "wire tapped" is not to be taken literally because it could mean a lot of surveillance-related things, we know that they are capable of walking back even the most specific blunders, no matter how silly it makes them look.

And even though Trump spent a lot of time during the campaign talking about the wall, his other big applause line was that he would put Hillary Clinton in jail. None of his supporters seem to care that he was not serious about that. ("Draining the swamp" is also long gone.)

In short, Trump is making himself look like a fool. More importantly, he is doing this when it is absolutely unnecessary to do so. Trump might believe that he has unlimited political capital -- and with most of his supporters, he might well be right -- but he does not, and it makes no sense for him to make this unforced political error.

It makes no sense, that is, unless he has drawn one of two conclusions: (1) Going through with building the wall will actually become popular with people who currently do not support it, or (2) He is willing to lose political popularity over this issue, because the substantive advantages of building a wall are worth it. If he believes explanation #1, he is fooling himself. If it is #2, he simply does not understand how border protection works. (See also his travel bans.) It could be both, and I am betting that it is.

The reason that this is all so odd is that Trump seemed to have figured out a way to glide through his presidency without actually doing anything important. He has created such a distorted political atmosphere that he can, for example, both confirm and deny that a 2005 tax form was accurate, leaving everyone to wonder whether the "leak" of that shred of information was planted by the White House.

Watching the press chase every crazy thing coming from his Administration was turning out to be a seriously plausible survival strategy. All Trump had to do was say something bizarre every time anything serious came up, and he could skate along to the next news cycle.

Would it matter that nothing ever happened under Trump's presidency? Not really. Trump could blame the Democrats, the Republicans (especially his chew toy, Paul Ryan), and pretty much anyone else for not getting it right. More importantly, he would not have to put his name on anything that would be open to attack.

This is especially important because a White House does have to do some things that are going to be politically contentious. The federal budget is a minefield, for example, and any president is going to take heat for the choices of winners and losers that his budget implies. Trump's first budget proposal makes it obvious that he is not going to do anything to help his non-rich supporters, and he is actually proposing to make their lives worse. (This is also true of the new health care bill.)

All of which means that a president who came into office with historically low approval ratings, and who still cannot accept his drubbing in the popular vote, needs to do everything he can to avoid self-inflicted wounds.

Again, is this because Trump actually has some core (terrible) beliefs that he is willing to pursue, no matter the consequences? Or does it mean that he is a political masochist?

I always thought that his only core policy belief lined up with Republican orthodoxy: tax cuts for the rich and screw everyone else. That he might actually care about anything other than that (and, of course, his own ego gratification) is surprising, and that he is willing to risk his own brand to pursue those goals is puzzling in the extreme.

Wednesday, March 15, 2017

In my column for this week, I discuss the case of Buck v. Davis, in which the Supreme Court, after cutting through a procedural morass, ruled that a capital defendant's attorney had been constitutionally ineffective under the Sixth Amendment when he introduced an expert witness who said that the defendant, though unlikely to be dangerous in the future, did have one characteristic (his race) that statistically correlated positively with future violence, a correlation that could have led the jury to sentence the defendant to death (as the jury was permitted to do only if it found that he was likely to be violent in the future).

In my column, I discuss the importance of race to this case, observing that ordinarily, if an expert witness has something helpful to say (i.e., that the client is not dangerous) and something harmful to say (i.e., that the client has a characteristic that correlates positively with dangerousness), it is acceptable practice for the attorney to decide it is worth introducing the expert witness's testimony, notwithstanding the harmful portions of that testimony. In other words, evidence is generally not wrapped up nicely in a bow of purely helpful testimony that a defense attorney can choose to utilize without any downsides. This is where strategy comes in, and a lawyer makes a judgment about whether the helpful aspects of the testimony do or do not outweigh the harm that it might do. It was because the expert in Buck was feeding a virulent racial stereotype about violent black men that it made sense for the Court to find that the attorney who presented the expert was ineffective, having made an inexcusable judgment call, and that the error likely had an impact on the outcome of the case.

In this post, I want to observe that the phenomenon of the "mixed bag" in evidence is hardly unique to the context of an attorney deciding whether to introduce an expert witness. As I teach my students in Evidence class, even though the various rules of evidence tend to offer bases for excluding rather than for admitting evidence, most of the rules prohibit inferences rather than evidence. This means that a typical rule will not say that all evidence (of liability insurance, for example) is inadmissible but will say instead that such evidence may not be offered to support a prohibited inference (of negligence, for instance). To the extent that the evidence is relevant only to prove the point on which it is inadmissible, the evidence stays out.

However, in the many circumstances in which the evidence is relevant both on an impermissible point and on a permissible one, there is a good chance that a judge will choose to overrule an objection to the evidence and admit it subject to a limiting instruction telling the jury that it may not rely on the evidence to prove the impermissible point but may use it only as proof of the permissible conclusion. This process resembles the efforts of a defense attorney to capitalize on the helpful testimony of an expert and encourage the jury to focus on that rather than on the harmful aspects of the testimony.

Unfortunately, it is rare to have evidence that is pure and relevant only on a point on which it is admissible. More commonly, evidence will have multiple relevances. For example, a criminal defendant's prior conviction for grand larceny is relevant both to prove that he is less trustworthy as a witness than he would otherwise be (credibility) and that he is more likely to have committed the robbery of which he is charged than he would be in the absence of this evidence (guilt). The prior conviction is admissible, however, only on the issue of credibility, not as proof of the defendant's guilt. The compromise that the rules of evidence often provide is that the conviction may come in subject to a limiting instruction telling the jury not to use the conviction as proof of guilt but only as proof of (the lack of) credibility.

It turns out, based on empirical studies, that jurors have a very difficult time limiting their consideration of evidence to the purposes for which they have been instructed to consider it. Especially if evidence is highly relevant to something for which it is inadmissible, jurors will tend to pay attention to it (and perhaps pay even greater attention when they have heard a limiting instruction telling them not to draw the impermissible inference). Like the jurors who heard from the expert both that the defendant in Buck was not dangerous and that his race statistically correlated with future danger, jurors hearing evidence with multiple relevances will likely attend to everything, not just to the part that is permissible/helpful.

For the law of evidence, this is where the important job of Federal Rule 403 comes into play. Under Rule 403, if the probative value of evidence is substantially outweighed by its tendency to cause unfair prejudice (or other problems, such as juror confusion), the evidence may be excluded altogether, despite its relevance to a point on which it is admissible. Through Rule 403 (and its analogues in various rules that modify which way the balance cuts), it becomes possible to take into account the reality that juries--at least sometimes--cannot follow the limiting instructions that they receive and that the best course may be to keep out the evidence altogether. For the evidence of racially-correlated dangerousness, this too would almost certainly have been the right call.

Tuesday, March 14, 2017

by Michael Dorf
If you answered the question that titles this post "it's immoral," you're right, but that's not the answer I am looking for. I want to know why the lawsuit will fail as a legal matter. After explaining what the case is about, I'll provide the answer.

On Monday, attorneys for the Thomas More Law Center filed a lawsuit on behalf of the Tennessee General Assembly and various Tennessee state legislators against various federal government officials, alleging that the federal refugee resettlement program (which is currently on hold) is unconstitutional.

The suit purports to represent the state of Tennessee, but there is at least initially a question of standing. The complaint cites a state resolution directing the state Attorney General to file the suit and purporting to give itself the power to hire outside counsel to do so in the event that he does not. The complaint also cites the AG's letter declining the invitation but delegating the power to bring the suit back to the legislature, which hired Thomas More.

That settles the question of standing, right? Probably. In Karcher v. May, the SCOTUS held that state legislative leaders lacked standing to represent the state (of New Jersey in that case) after they lost their offices but that they had standing to do so prior to that, because New Jersey law authorized their representation of the state. I say "probably" rather than "definitely," however, because more recently, in Hollingsworth v. Perry, the Court rejected the California Supreme Court's determination that the sponsors of a California ballot initiative had standing to defend the initiative when the state AG would not. The Court distinguished Karcher by noting that legislators are different from private parties, but it also indicated that in evaluating the standing of any party purporting to represent the state in its sovereign capacity, federal courts should analyze state law. Thus, it is at least open to the federal government--assuming the Trump administration defends against the lawsuit at all!--to argue that Tennessee law did not permit the legislature and/or the state AG to authorize the lawsuit.

Assuming that standing is not an issue, what about the merits? The state plaintiffs make two closely related claims.

First, they argue that requiring the state to spend Medicaid funds on refugees or else lose all its Medicaid funding--as the state is required by the combination of two federal statutory provisions (here and here)--amounts to a coercive exercise of the Spending Power by Congress, because of the amount of money at stake. This is at least superficially a plausible reading of the part of NFIB v. Sebeliusthat invalidated Congress's effort to condition all Medicaid funds on states' acceptance of the Affordable Care Act's expansion of Medicaid, but only superficially. Crucial to that ruling was the tying of "new" conditions to "old" expenditures, whereas the obligation to include certain lawful non-citizen residents in Medicaid is longstanding. If the state plaintiffs' theory were accepted, then one could point to any longstanding requirement of Medicaid (or any other large federally funded joint state-federal program) and declare it disproportionate to the total funds. Accordingly, the state plaintiffs' argument that the obligation to spend Medicaid money on non-citizens is coercive should fail.

The state plaintiffs' second argument is that as currently administered, the federal program for resettling refugees commandeers state participation in violation of New York v. United Statesand Printz v. United States. But the state plaintiffs' argument to this effect is practically frivolous. The complaint notes that in compliance with a federal regulation, effective in 2008, Tennessee withdrew its voluntary cooperation from the resettlement program. And yet, the complaint darkly alleges:

Despite Tennessee notifying the federal government that it declined to further implement, fund, or participate in the federal refugee resettlement program, the federal government—through various regulations and statutes—coerced the state to continue funding the refugee resettlement program by threatening the state with the loss of federal Medicaid funding. Furthermore, in direct violation of constitutional principles of state sovereignty, the federal government bypassed the decision of Tennessee’s elected representatives and mobilized a private agency to assume control and direction of the refugee resettlement program in Tennessee. As a result, the federal government nullified the decision of the people of Tennessee to withdraw from an ostensibly voluntary federal program and thereby commandeered state funds to support a federal initiative.

The claim that the threatened loss of federal Medicaid funding amounts to commandeering is completely parasitic on the contention that the Medicaid funding requirement violates NFIB v. Sebelius, which, as noted above, it does not. As both New York and Printz make clear, if the funding conditions are a valid conditional exercise of the Spending Clause (as they are here), then they are not commandeering.

The quoted paragraph contains a further allegation: that somehow by designating a private agency (Catholic Charities) to "assume control and direction of the refugee resettlement program in Tennessee," the federal government "nullified" Tennessee's decision to cease participation in the program. Yet the very regthat Tennessee invoked to end its voluntary participation in the refugee resettlement program also expressly authorized the federal government to designate "a replacement designee or designees to administer the provision of assistance and services" to refugees. That probably explains why for nearly a decade after Tennessee ceased voluntary participation in refugee resettlement, it did not occur to anyone in the state to argue that the federal government was somehow infringing the state's sovereignty by running the program through an NGO. It also probably explains why the state AG opted not to file this lawsuit.

At bottom, the state plaintiffs' claim comes down to the contention that the federal government's and Catholic Charities' resettlement of refugees in Tennessee imposes indirect collateral costs on the state. That may be a legitimate gripe, but it is not a constitutional or other legal gripe. Federal laws and programs routinely have adverse collateral consequences for states (and for that matter, private parties). Federal creation of a museum may generate traffic when tourists come to that museum, which in turn may create costs for states when the increased traffic leads to a need for more highway patrols. A federal regulation of industry may raise the cost of doing business for some firm or may lead some firm to shift its production from one state to another, in either case leaving a state with less revenue. The Unfunded Mandates Reform Act of 1995 imposes some procedural obligations on the federal government before imposing unfunded mandates on the states, but notably, the state plaintiffs' complaint does not invoke the statute, and for good reason, because it has not been violated.

Accordingly, the complaint should be dismissed on a 12(b)(6) motion for failure to state a claim upon which relief can be granted. The only real question is whether the Trump/Sessions Justice Department will file such a motion or whether, instead, it will accede to the demands of this weak lawsuit. Section 6(d) of Trump's Muslim Ban 2.0 announces the administration's policy of granting state and local governments a greater "role in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees." It is possible that the Trump administration will use the Tennessee lawsuit as an excuse for halting refugee resettlement in states that are not voluntarily participating in resettlement. But if it does so, no one should have any illusions that it was compelled to do so by the law.

Last week, Arkansas Governor Asa Hutchinson announced an unprecedented plan to execute eight death row prisoners by lethal injection in a ten day period in April. As lawyers for the estate of Clayton Lockett, the Oklahoma inmate who in 2014 suffered perhaps the worst, botched execution in recent history, we are acutely aware of the many problems with lethal injection. Indeed, by now detailed media reports have informed the entire nation about the alarmingly common incidence of lethal injections gone wrong. We strongly urge Governor Hutchinson to reconsider his macabre execution plan.

No execution can be completely free of suffering, but lethal injection appears to be the worst method yet invented. The Constitution prohibits the states from carrying out such “cruel and unusual” punishments. Whatever one’s position on the death penalty, it should be beyond debate that the execution methods society chooses should not cause the prisoner excruciating pain and suffering.

Lethal injection typically involves the sequential administration of three different drugs. The first drug is supposed to render the prisoner unconscious. The drug that Arkansas, Oklahoma, and many other states now use for this stage is called Midazolam. Many medical experts believe that Midazolam is inherently incapable of knocking prisoners out completely.

The second drug is designed to paralyze the prisoner. This serves no purpose other than to ensure that no one will be able to tell if he is suffering. The final drug causes cardiac arrest, followed by death.

Ironically, lethal injection was originally believed to be a more humane method of execution. Proponents described the process as akin to a person going to sleep. Instead, it is more like a nightmare.

Although frequently less bloody and perhaps easier for the public to stomach than other execution methods, lethal injection is frequently carried out under state-designed protocols that fail to ensure that the prisoner is rendered completely unconscious before the state injects the drugs that cause his death. As Supreme Court Justice Sonia Sotomayor has observed, in such cases the prisoner may suffer “what may well be the chemical equivalent of being burned at the stake.”

That is what happened in Mr. Lockett’s case, and in many other executions across the country. No one disputes that Lockett suffered a horrific, gruesome, and painful death that lasted 45 minutes. Oklahoma’s execution protocols did not account for foreseeable problems that were likely to arise. Among many other flaws, its protocols called for woefully inadequate training for the state’s executioners and recklessly did not require them to visually monitor the injection site. If they had, it would have been obvious that the Midazolam had not properly entered Mr. Lockett’s bloodstream.

These are not isolated mishaps, but completely avoidable and reckless errors. Amherst Professor Austin Sarat showed that in the period from 1900 to 2010, lethal injection was by far the most frequently botched form of execution, even higher than the electric chair or the gas chamber. During this period, states botched the lethal injection executions of 75 prisoners.

While one might think states would learn from their past mistakes, the rate of botched lethal injection executions has recently increased. Just since Lockett’s execution in 2014, from what we can discern, there have been roughly nine more botched lethal injections.

Exacerbating the problem of faulty execution protocols is Arkansas’s rush to conduct multiple executions in a matter of days. The foreseeable risks would be significant even with the execution of a single person; scheduling multiple executions in such a short time frame significantly increases the chance of problems.

Not only is this plan dangerous, but it is not even justified by an important reason. Governor Hutchinson has publicly stated that he is accelerating the state’s execution schedule to save money. Some of the drugs that the state has set aside for these executions are about to pass their expiration date, so delays may require Arkansas to purchase new drugs.

If appeals to logic and humanity are unpersuasive, perhaps the state should be concerned about a different fiscal consequence. Should Arkansas’s reckless and ill-advised plan result in more botched executions, civil rights attorneys will no doubt sue Arkansas for damages in what will be a clear case of reckless disregard of these prisoners’ constitutional rights.

------
Editor's Note: Marceau and Chen are professors at the University of Denver Sturm College of Law.

Monday, March 13, 2017

by Michael Dorf
The current House bill to repeal and replace the Affordable Care Act (ACA), which has the support of the White House and can thus fairly be called "Trumpcare," would, as widely acknowledged by the reality-based community, make health care less affordable for millions of the working poor and others who currently receive subsidies to purchase health insurance on the ACA-authorized exchanges. By greatly reducing such subsidies and scaling back Medicaid, Trumpcare would thus allow the repeal of the surcharge that the ACA placed on people with high incomes to pay for expanded coverage under the ACA: a "0.9 percent payroll tax on earnings and a 3.8 percent tax on net investment income (NII) for individuals with incomes exceeding $200,000 and couples with incomes exceeding $250,000."

But Trumpcare would not merely make health care less affordable for those with low incomes in order to benefit those with high incomes. It would also result in a de facto shifting of the financial burden from the wealthy to the middle class--including the vast majority of people with employer-based health insurance--people who may think that they will be unaffected by ACA repeal/replace because the ACA is mostly not about employer-based health insurance.

Why? Because people without health insurance still need health care. One impact of the ACA was a substantial reduction in people without insurance showing up in emergency rooms with conditions that could be treated by a primary-care physician or, worse, that could have been treated cheaply and effectively by a primary-care physician but were made worse, and thus more costly to treat, by the delay in treatment. Increasing the number of uninsured people will reverse that development, which, in turn, will require hospitals and doctors to cross-subsidize more uncompensated treatment for people without insurance or other means to pay from people who have insurance.

That, in turn, will lead hospitals and doctors to increase charges to insurance companies for treatment of people who do have insurance coverage. Patients would not necessarily see those increases directly, but higher charges to insurers means higher insurance premiums for employers, which means less money left over for salaries and other benefits. As a consequence, people with employer-based health insurance will take home less money than they would if the ACA were to remain on the books.

High earners with such insurance will receive a tax cut (the repeal of the surcharges imposed by the ACA) that may leave them on-net better off (and the wealthier they are, the more better off they will be), but people who were not subject to the surcharges--that is to say, individuals earning less than $200,000 per year and couples earning less than $250,000 per year--will not receive any compensating financial benefit.

Thus, Trumpcare is essentially a transfer program from the working poor and middle class to the well-to-do. And that's to say nothing of the costs to lives and health.

On March 20, the Senate will begin the confirmation
hearings for Judge Neil Gorsuch. Based on his meetings with a few Senate
Democrats, it appears he will be reluctant, like most nominees, to answer any
question relating to his specific views on already decided cases or the
existing state of the law. This tradition is nonsense and needs to be changed.
Although nominees to the Court should not make any pledges or promises as to
how they will decide future cases, there is absolutely nothing wrong with them
disclosing their views on the pressing issues of the day or on old cases. Senator Charles Schumer
said it best at Chief Justice Roberts’ confirmation hearing:

“It seems strange, I
think, to the American people that you can't talk about decided cases, past
cases, not future cases, when you have been nominated to the most important job
in the Federal judiciary…. You could do it when you worked in the Justice
Department. You could do it when you worked in private practice. You could do
it when you gave speeches and lectures. As a sitting judge, you have done it until
very recently. You could probably do it before you just walked into this
hearing room. And if you are confirmed, you may be doing it for 30 years on the
Supreme Court. But the only place and time that you cannot criticize any cases of
the Supreme Court is in this hearing room when it is more important than at any
other time that the American people and we, the Senators, understand your
views.Why
this room should be some kind of a cone of silence is beyond me. The door
outside this room does not say, ‘Check your views at the door.’”

Judge Gorsuch has had an
outstanding legal career and is interviewing for a lifetime appointment to the
highest Court in the land. There can be no doubt that he has already formed
views on many of our most controversial constitutional (and other) questions. Any answers he
gives to the questions below should of course come with the disclaimer that when
faced with a real case and a specific context, he could change his mind. It is
also possible, of course, that the honest response he may have to one or more
of the questions is something along the lines of “I am truly torn on the issue" or "I really haven't thought about it enough to have an opinion." But he, and future nominees, should not be allowed to get away with the
traditional “that case might come before me” evasion. Nor should he be allowed
to get away with the typical, “well that case is settled law.” The question is whether he agrees with that settled law.

No answer he gives binds
him to any future judgment. But if he wants a seat on our nation’s highest
Court, the American people have a right to know where he stands. So with that
in mind, here are ten questions (with possible follow ups) that he should be
asked:

1) Do you believe Brown
v. Board of Education correctly outlawed the separate but equal rule and,
if so, based on what constitutional principle?

2) Do you believe that the holding in Griswold v. Connecticut that states may
not criminalize the use of contraceptive is a correct constitutional holding? If
so, based on what principle?

3) Do you believe that the “undue burden” standard for
abortion laws laid down in Planned Parenthood v. Casey and
reaffirmed last term by Whole Women’s Health
is a correct constitutional principle? If not, what standard would you
replace it with?

4) Do you believe that the Constitution requires
exacting strict-scrutiny review for public colleges and universities that use
racial preferences in their admissions programs? If not, what standard would
you replace with it?

5) Do you believe that Congress must have a strong reason
to treat different states differently as held by the Court in Shelby County v. Holder? If so, based on what
constitutional text and/or history?

6) Do you believe the Heller and McDonald decisions
are correct that the Second Amendment protects an individual right to own guns?

7) Do you believe vague constitutional provisions such
as the Equal Protection Clause and the First Amendment should be interpreted
according to the original meaning of those provisions? If so, how would you go
about ascertaining that meaning?

8) Do you believe state and federal laws that
discriminate on the basis of gender should be subject to rational basis,
intermediate scrutiny, or strict scrutiny? If the review is stricter than normal
rational basis review, why?

9) In a series of cases, the Court has indicated that
competent people have a fundamental right to refuse end of life care. Do you
agree with that principle?

Friday, March 10, 2017

Monday's announcement that the Supreme Court would not hear G.G. v. Gloucester County (the "Gavin Grimm" case) on March 28, 2017 as scheduled, sent a wave of disappointment through much of the left-leaning legal community. Gavin Grimm, the now-17 year old plaintiff who had seemed well on his way to becoming a bona fide celebrity -- he received a "shout out" from Laverne Cox at the Grammys! -- now may end up a footnote in trans history. But perhaps the news is not all bad.

The disappointment is understandable. The Gavin Grimm case, concerning the right of a trans student to use the bathroom he preferred (the boys' bathroom at his high school), would have been the first trans rights case before the high court. It would have forced the Supreme Court to reckon with the reality of trans existence. It was an opportunity for some of the most skillful trans advocates and their allies to explain to all of the United States why transgender bathroom access is not (just) about bathrooms; why opposition to this access is not about “women and children,” not about “safety” or “privacy” or “sexual predators” - but is instead an attempt to banish trans people from public life and our shared public spaces, in violation of deeply-held American values. Just as segregated water fountains were never (just) about getting a drink, equal access to bathroom facilities is not just about relieving oneself. Bathroom access for trans people is about equality, liberty, and civic participation in the most fundamental ways. This case might have vindicated those rights. It might have been a trans Brown v. Board of Education.

But the case also carried a risk - a risk that the Supreme Court would not see it as trans advocates hoped, and would instead deal a blow to trans rights that might take a generation to undo. It might, in short, have been Bowers v. Hardwick all over again.

Bowers, for those who might not recall it, was the 1986 Supreme Court case that upheld Georgia's criminal sodomy law. By the 1980s, many states had abolished such laws, and in others they had fallen into desuetude. It might have appeared that the time was ripe for a challenge. But the AIDS epidemic was in full swing, there were few openly gay people in public life, and instead of broadening rights of sexual privacy and intimate association, the outcome was decided by a majority who searched the Constitution in vain for “a fundamental right to engage in homosexual sodomy,” and notoriously dismissed any claim of “a right to engage in such conduct” as, “at best, facetious.”

It was seventeen long years from Bowers to 2003's Lawrence v. Texas, which finally struck down anti-sodomy laws (as applied to adult consensual non-commercial private conduct), and paved the way to U.S. v. Windsor(2013)and Obergefell v. Hodges (2015), the cases that eliminated the “Defense of Marriage Act,” and vindicated the right of all adult Americans not just to have sex with, but also to marry, the person of their choice.

A great deal happened in those years between Bowers and Lawrence, including widespread enactment of state-level anti-discrimination protections for LGBT persons, and the birth of the modern same-sex marriage movement. The years from Lawrence to Obergefell brought gay people and gay rights even further into the mainstream, and support for LGBT rights and same-sex marriage has had stable majority support overall for some years.

But there were setbacks too. On the one hand, 1996 brought a victory in Romer v. Evans, which used rational basis scrutiny to strike down Colorado’s Amendment 2, which purported to block the enactment of any law protecting the rights of gay people. But that same year brought the Defense of Marriage Act, a reactionary federal response to the burgeoning same-sex marriage movement, and a historic departure from full faith and credit that not only denied federal recognition of same-sex marriage, but created a crazy-quilt of inconsistent state laws.

That patchwork proved ultimately unsustainable and incoherent (Windsor was a federal estate tax case, concerning a New York couple married in Ontario, Canada, whose marriage was recognized by the State of New York but not the United States or the Internal Revenue Service). So many different legal rights, duties, and benefits depend on marital status that to treat couples as married in one place and not in another (or married at the state level, but not the federal one) became unmanageable. Justice and practicality both demanded a uniform federal approach, and it came. But it took almost 30 years.

As bad as inconsistent state laws were for gay couples (who were at least adults theoretically able to change domicile), things are in some ways even worse for trans students. A child who cannot use the bathroom associated with the gender with which they identify faces three choices, all of them bad: to present in one gender and use the bathroom associated with the sex assigned at birth (based on external genitalia), thereby outing themselves, suffering discomfort and possibly eliciting violence from others; to live in “stealth,” using the facilities associated with their preferred/presenting gender, in constant fear of being outed, with consequences again ranging from embarrassment to violence; or not to outwardly transition at all during their childhood, a medically and psychologically damaging course of action associated with tremendous risk of suicide and self-harm. (Today, young transitioners have available puberty-blocking hormone treatments, which (reversibly) prevent puberty in the birth sex, making a complete medical and social transition in adulthood much easier. But precisely because puberty does not occur, using birth-sex facilities becomes increasingly visibly awkward.)

A trans child forced to move from a state in which they are protected and respected as students, to a state in which they are not - at age 5, 10, or 15 - faces a major trauma, to which no loving and responsible parent would willingly subject their child. But if a move is a matter of economic or personal necessity for the family - perhaps the parent works for a company that transfers them, in an industry with few options, or the parent must return home to care for their own aging or disabled family member - what choice would they have?

Imagine explaining to a child who has lived as a girl since preschool, that she must use the boys' bathroom (because she was born with a penis); or lie and hide from her teachers and friends; or de-transition (or postpone transitioning) -- all to accommodate the bigotry, fear, and ignorance of others.

And without in any way minimizing the injustice and indignity suffered by couples who had to wait many years to marry (or for full recognition of their marriage), a child has only one chance at elementary school, middle school, and high school - the deprivation of full educational opportunity in those years can never be made good.

For all these reasons, the need for a uniform federal approach is clear; as Michael Dorf has argued here, states’ rights and “go slow” approaches are a poor fit for issues like this. The problem is that a result as favorable and sweeping as Lawrence or Obergefell in trans rights’ first at-bat before the high court, seems unlikely.

This is not because the evidence is not on the side of trans rights activists. Numerous states and school districts have implemented policies like those contained in the Title IX “Dear Colleague” letter without incident; evidence of trans persons (or those posing as trans persons) posing threats to public safety in bathrooms or locker rooms is non-existent. But there was no evidence of harm from consensual private adult sodomy at the time of Bowers.

Nor is it because the legal arguments are weak. It’s true that the centerpiece of the Fourth Circuit’s reversal of the district court was “Auer deference,” a doctrine counseling that the judiciary accept most agency interpretations of their own regulations. As the Fourth Circuit put it, “Because we conclude the district court did not accord appropriate deference to the relevant Department of Education regulations, we reverse its dismissal of G.G.’s Title IX claim.” Had Clinton been elected, and a Clinton DOJ/DOE been installed, it’s safe to say the government would have vigorously defended both the “Dear Colleague” letter, and the doctrine of Auer deference upon which the Fourth Circuit relied. But even though that guidance was withdrawn on February 22, 2017, arguably mooting the Auer issue, both sides in Grimm wished to proceed on the pure statutory Title IX claim.

As Michael Dorf and others have argued in their amicus brief, “consign[ing] transgender students to restrooms on the basis of their external reproductive organs” discriminates impermissibly against them, “on the basis of sex,” by imposing serious harms not counterbalanced by the achievement of any important educational objectives. This argument is surely correct. But will the Supreme Court agree? I am less confident.

We may have reached what Time magazine’s 2014 cover story proclaimed as “The Transgender Tipping Point.” But “America’s next civil rights frontier” (as Time described it) is far from settled territory in the current culture war. The very Title IX “Dear Colleague” letter requiring that trans students be permitted to use bathrooms consistent with their gender identity was, after all, slapped with an injunction sought by a dozen states - and that was well before Donald Trump’s election. At the state level, “bathroom bills” as restrictive as North Carolina’s notorious HB2 continue to be proposed; one such bill advanced to the Texas Senate on Wednesday, March 8, 2017. The ignorance and fear surrounding trans people - though baseless - is still all too real.

What might a Bowers-like decision in Grimm have looked like? It might, first, have solidified the identification of “sex” for Title IX (and possibly even Title VII) purposes with external genitalia. It might, in permitting discrimination against trans students, have reinscribed stereotypes about trans people as sexual deviants or predators; it might have denied the reality of their lived gender experience (as "at best, facetious"), subordinating it to their genital status. It might have held that imposing conditions on bathroom use that drove those students out of school (or worse) was nevertheless “rational.” It might have undermined the ability of school districts wishing to protect trans students from bigotry to do so, and encouraged those states and school districts who had protected trans students’ rights only under federal mandate to roll those protections back. And just as gay Americans spent the years from Bowers to Lawrence under the shadow of a Supreme Court prepared to countenance the criminalization of their most intimate lives, a generation or more of trans students might have grown up knowing their education and life prospects mattered less to the Supreme Court than the ignorant bigotry of those who would deny their existence.

So the case is now back at the Fourth Circuit, which staked out a modest judicial role the last time around, acknowledging that “Not only may a subsequent administration choose to implement a different policy, but Congress may also, of course, revise Title IX explicitly to prohibit or authorize the course charted here by the Department regarding the use of restrooms by transgender students.” The Fourth Circuit also expressly refused to reach the Equal Protection argument until the district court considered it. By the time that happens, of course, the Betsy DeVos DOE may have issued new guidance; the Republican Congress may amend Title IX; and nominee Judge Neil Gorsuch (a judge generally hostile to deference doctrines) may have been confirmed as the ninth Supreme Court justice. Or things may have taken turns decisively for the better. And at least where the rights of trans people are concerned, we may have inched closer to a world more like Lawrence than Bowers.